WaterRower (UK) Limited v Liking Limited (T/A Topiom)

On an application to strike out or obtain summary judgment, the court should not finally determine a developing or fact-sensitive question of copyright law where the claim has a real prospect of success and further evidence may affect the outcome. Whether an object is a work of artistic craftsmanship is fact-sensitive. Artistic intention may be relevant without being conclusive or dominant. Utility and technical constraints do not necessarily prevent protection. A functional work may combine craftsmanship, artistic qualities and creative choices. The court declined to resolve the wider interaction between the Copyright, Designs and Patents Act 1988 and EU copyright principles because that issue did not arise conclusively on the evidence.

The claimant alleged copyright infringement in eight iterations of its WaterRower rowing machine. The defendant admitted infringement if copyright subsisted, but contended that the machine was not a work of artistic craftsmanship under section 4(1)(c) of the Copyright, Designs and Patents Act 1988. It applied to strike out the claim under CPR 3.4(2)(a), alternatively for summary judgment, and sought a declaration of non-subsistence of copyright.

The central issue was whether the claim was bound to fail, or had no reasonable grounds or real prospect of success, on the present evidence. The court also considered whether the claim should be rejected under the approaches in Hensher and the Court of Justice decisions in Cofemel and Brompton.

1. Application dismissed. The claim was not obviously ill-founded or bound to fail. The counterclaim for a declaration that the WaterRower was not a work of artistic craftsmanship was also rejected. The case was to proceed towards trial.
2. On strike out and summary judgment, the court must avoid a mini-trial and should hesitate before finally deciding a fact-sensitive or developing area of law where further evidence may affect the result. It should decide a short point of law where the necessary evidence is available, but the interaction between the statutory categories and EU copyright principles was not a simple short point suitable for determination on this application.
3. The court treated George Hensher Ltd v Restawile Upholstery (Lancs) Ltd as the leading authority. The five speeches did not yield a single simple definition. They supported the relevance of the creator’s intention, while making clear that intention is not necessarily conclusive. Eye appeal alone is insufficient, but utility is not a bar. Whether a work is one of artistic craftsmanship remains a question for the trial judge on the evidence.
4. The evidence of artistic intention, craftsmanship, manual production, aesthetic recognition and alternative design possibilities gave the claimant a real prospect of proving the statutory requirement. Outsourcing manufacture did not necessarily prevent a finding of craftsmanship. The court also applied the reasoning discussed in Lucasfilm Ltd v Ainsworth and the approach in Bonz Group (Pty) Ltd v Cooke as sufficient, at this stage, to resist strike out.
5. The court considered that the WaterRower was an original object and an expression of intellectual creation. Technical constraints did not necessarily leave no room for free and creative choices. The claimant therefore also had a real prospect of success under Cofemel-Sociedade de Vestuário SA v G-Star Raw CV and SI and another v Chedech/Get2Get (Brompton).
6. The court declined to resolve the apparent inconsistency between the CDPA and EU copyright law. That issue could be addressed at trial and, if necessary, by the Court of Appeal on proper findings of fact.